Citation Nr: 1315221 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 11-34 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John R. Worman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran performed active military service from January 1953 to November 1954. This appeal arises to the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that continued a 40 percent schedular rating for lumbosacral strain, continued a 30 percent schedular rating for a respiratory disability characterized as pulmonary tuberculosis, inactive, with associated bronchiectasis of the right upper lobe, and denied entitlement to a TDIU. The Veteran had previously commenced an appeal of a July 2009 RO rating decision that denied service connection for posttraumatic stress disorder (PTSD). However, during a hearing before the undersigned Veteran's Law Judge in September 2012, the Veteran withdrew his appeal for service connection for PTSD. While the Veteran did not appeal the August 2011 denial of claims for increased schedular ratings for respiratory and spinal disabilities, because he has claimed that these disabilities now preclude working, their current severity is called into question. The United States Court of Appeals for Veterans Claims (Court) has stressed that evidence of unemployability arising from a service-connected disability is indeed evidence of an increase in the severity of that disability. See Wood v. Derwinski, 1 Vet. App. 367, 369 (1991) (holding that "claim for unemployability compensation was an application for 'increased compensation' within the meaning of [38 U.S.C.] § [51]10(b) (2)"). Moreover, in Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court stated that the issue of entitlement to an increased rating was "inextricably intertwined" with the issues of an extra-schedular rating or a total disability evaluation. Applying the Bagwell holding to the instant case, the correct schedular disability ratings of all service-connected disabilities must be reviewed when determining entitlement to TDIU. The claim was previously before the Board in November 2012 when it was remanded for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Review of the claims file reveals that the Veteran has reported as recently as October 2010 that he receives consistent treatment at VA. In March 2010 the Veteran reported that he received treatment at VA "every Thursday" for his spine. Review of the claims file does not reveal any VA treatment records dated subsequent to July 2009. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. As such, attempts must be made to obtain and associate with the claims file VA treatment records dated subsequent to July 2009. In the November 2012 Board remand it was determined that it was unclear whether the examiner in the prior January 2011 VA pulmonary tuberculosis and mycobacterial diseases compensation examination report considered the Veteran's service-connected respiratory disability, identified as pulmonary tuberculosis, inactive, with associated bronchiectasis of the right upper lobe, in rendered the opinion that "[t]he Veteran's SC condition should not preclude light duty or sedentary employment. Strenuous physical employment is limited given the Veteran's age and his obstructive restrictive lung disease." In addition, the Board determined that it was unclear whether the physician considered the Veteran's service-connected lumbar spine disability. Further the Board noted that it appeared from the opinion that the Veteran's age was considered, which is prohibited. Age may not be considered as a factor in a total disability rating. 38 C.F.R. § 4.19 (2012). As such, the Board remanded for clarification. In November 2012 the Board noted that the January 2011 VA spine compensation examination report reflects that the Veteran was unable to walk more than a few yards and the Veteran refused to perform the range of motion testing. The examiner was noted to report moderate to moderately severe degenerative disc disease of the lumbosacral spine with spurring and narrowing of disc spaces. The diagnosis was degenerative joint disease of the lumbar spine. The physician opined that the "SC" condition should not preclude light duty or sedentary employment, "given the Veteran's DJD spine condition." The Board found that clarification of this opinion was necessary as the Veteran was not in receipt of service-connected benefits for degenerative joint disease of the lumbar spine but only for lumbosacral strain. The Board ordered that an opinion be obtained regarding whether the Veteran's lumbosacral strain caused or aggravated any lumbar spine degenerative joint disease, or degenerative joint disease at higher levels. In addition, the Board ordered that if the degenerative joint disease was not secondary to service-connected lumbosacral strain, then the examiner should address whether it is at least as likely as not that any spinal degenerative joint disease is directly related to active service, and then the examiner was instructed limit the TDIU opinion to the service-connected lumbosacral strain and the service-connected respiratory disabilities. The Board further found in November 2012 that it was unclear from the examination reports dated in January 2011 whether either examiner considered all of the Veteran's service-connected disabilities in rendering an opinion regarding whether it is at least as likely as not (50 percent or greater possibility) that all service-connected disabilities would preclude obtaining or retaining substantially gainful employment. As such, the Board remanded for a medical opinion to be obtained. Pursuant to the Board's November 2012 remand, in January 2013 a VA medical opinion based upon review of the claims file was obtained. The examiner rendered the opinion that "[t]he [V]eteran's SC conditions should not preclude light duty or sedentary employment." Later in the examination report the examiner stated that the Veteran's is unemployable due to his non-service-connected severe lumbar spine and cervical spine degenerative disc disease, deconditioning, and sitting/standing/walking difficulties. The Board notes that although the examiner has indicated that the Veteran is unemployable due to his non-service-connected severe lumbar spine and cervical spine degenerative disc disease, the examiner continues to indicate that the Veteran is unemployable due to deconditioning, and sitting/standing/walking difficulties. The examiner did not indicate whether any of the Veteran's deconditioning, and sitting/standing/walking difficulties may be related to the Veteran's service-connected lumbosacral strain or pulmonary disabilities. As such, the Board finds the examination report to be inadequate and the claim must be remanded for the Veteran to be afforded a new examination. In November 2012 the Board ordered that separate ratings for the Veteran's already-service-connected pulmonary tuberculosis with associated bronchiectasis of the right upper lobe be considered. The Board indicated that the appealed August 2011 RO rating decision reflects that the assigned Diagnostic Code is Diagnostic Code 6722-6601 and that a single 30 percent rating has been assigned under these combined Diagnostic Codes. Diagnostic Code 6722 is for moderately-advanced, inactive pulmonary tuberculosis. Diagnostic Code 6601 is for bronchiectasis. Both are service-connected. The Board noted that although the RO has combined both disabilities into one rating, according to the rating schedule, such combinations are forbidden. In addition, the Board in November 2012 noted that the January 2011 VA examiner's report that an "Obstructive respiratory condition; Restrictive respiratory condition" is a residual of the service-connected inactive tuberculosis and that "COPD is seen with chronic lung changes with apical pleural thickening" raise the question of whether secondary service connection should be considered for an obstructive respiratory condition, including COPD, and for a restrictive respiratory condition. As such, the Board ordered that service connection for these secondary respiratory disabilities be considered. The Board notes that there is no indication that the RO has considered entitlement to service connection for an obstructive respiratory condition, including COPD, and for a restrictive respiratory condition, to include as secondary to the inactive tuberculosis, or has considered separate evaluations for the Veteran's pulmonary tuberculosis and bronchiectasis as ordered by the Board in November 2012. Therefore, the Board has no discretion and must remand for compliance with these instructions. See Stegall v. West, 11 Vet. App. 268 (1998). As service connection for an additional respiratory disability and separate compensable evaluations for the Veteran's currently service connected respiratory disabilities may impact the Veteran's overall compensable evaluation and, therefore, the Veteran's claim for TDIU, the Board finds these issues to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Board finds it necessary to remand the issue of entitlement to a TDIU. Lastly, review of the claims file reveals that a power of attorney in favor of John R. Worman, Attorney, was executed by the Veteran in November 2011. As this representative has not been forwarded a copy of the November 2012 remand and the subsequent January 2013 Supplemental Statement of the Case, on remand these documents should be forwarded to the Veteran's representative. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Forward copies of the November 2012 Board decision and the subsequent January 2013 Supplemental Statement of the Case to the Veteran's representative, John R. Worman, Attorney. 2. Attempt to obtain VA medical records pertaining to the Veteran that are dated since July 2009. 3. Consider separate ratings for the already-service-connected pulmonary tuberculosis with associated bronchiectasis of the right upper lobe. Although the RO has combined both disabilities into one rating, according to the rating schedule, such combinations are forbidden. 4. Consider secondary service connection for COPD and/or restrictive airway disease, as the January 2011 VA compensation examination report strongly suggests that these diseases are residuals of the Veteran's pulmonary tuberculosis. 5. Thereafter, the Veteran should be afforded a VA examination to determine the impact of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation. The claims folder must be made available to and reviewed by the examiner and all necessary tests should be conducted and all clinical findings should be reported in detail. Thereafter, the examiner must opine as to whether, without regard to the Veteran's age or the impact of any non-service-connected disabilities, it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The examiner should take into consideration the Veteran's level of education, special training, and previous work experience. The examiner should describe what type of employment activities would be limited due to his service-connected disabilities. 6. Readjudicate the claim for TDIU. Thereafter, if the schedular requirements set forth in 38 C.F.R. § 4.16(a) are not met, consider whether to refer his TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra-schedular TDIU rating under 38 C.F.R. § 4.16(b) and/or § 3.321(b). Following that action, if the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).